General terms and conditions of XooMooX (contractor) in dealing with entrepreneurs and equivalent persons

As of 01.01.2007

Preamble
(1) The following general terms and conditions of business shall apply to companies, legal entities under public law and special funds under public law. They are not applicable to consumers.

(2) The deliveries, services and offers of the contractor shall be based exclusively on these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby contradicted.

Conclusion of the contract in particular agreement on quality

(1) The contractor’s catalogs, brochures and initial offers are mere invitations to the client to submit a contractual offer and are therefore non-binding and subject to change in all parts. The contractor shall send an order confirmation for all orders, with the exception of orders which are delivered immediately.

(2) The parties agree that the current state of color technology does not permit unlimited light fastness, abrasion resistance, water resistance and similar properties. Furthermore, it is agreed that in the case of custom-made products, in particular with advertising printing or embossing, 10% excess or short deliveries, and 20% in the case of small runs, are permissible.

(3) In the case of mass-produced articles of any kind, 3% rejects due to printing and further processing are customary in the trade and are in accordance with the agreement.

(4) The duty to check the goods for printing errors shall be borne by the customer. He shall comply with this obligation before the start of production.

(5) Upon request, the contractor shall provide the customer with a galley proof or a release sample. Upon acceptance of the proof or release sample, the quality of the proof or release sample shall be agreed as owed by the customer.

(6) Agreed quality provisions do not constitute a guarantee of the contractor.

Delivery
(1) The delivery is always ex works. A delivery to the client is only made if this is expressly agreed in the contract and even then only at the client’s expense.

(2) Binding delivery dates require express agreement.

(3) Disruptions in the business operations of the contractor or its suppliers for which the contractor is not responsible, in particular work stoppages and lock-outs as well as cases of force majeure which are based on an unforeseeable and non-culpable event, shall extend the delivery times accordingly. If these disturbances last longer than three months, both parties may withdraw from the contract after setting a deadline. The contractor shall inform the customer immediately of the delays. In the event of withdrawal, the contractor shall immediately reimburse the customer for any consideration already provided.

(4) If the goods are further processed by a third party on behalf of the customer, the contractor’s delivery obligation shall be deemed to have been fulfilled upon delivery of the goods to the third party, even if the contractor advances the costs of the further processing.

(5) The contractor is entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is not reasonable for the customer.

Payment
(1) Unless otherwise agreed, the invoices of the contractor are payable immediately without deduction. The contractor is entitled, despite any provisions of the customer to the contrary, to set off payments first against the customer’s older debts. If costs and interest have already been incurred, the contractor shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.

(2) A payment shall only be deemed to have been made when the contractor can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque is cashed.

(3) Only those who have a power of attorney issued by the contractor shall be authorized to collect payments.

Retention of title
(1) The delivered goods shall remain the property of the contractor (reserved goods) until payment of all claims arising from the business relationship and all claims still to be incurred in connection with the subject matter of the contract.

(2) If the customer sells goods subject to retention of title, he hereby assigns to the contractor the claims arising from the value of the goods subject to retention of title with all rights. This shall also apply in the event of co-ownership acquisition by the customer. The customer is entitled to process the reserved goods in the ordinary course of business and to demand payment for the goods.